Int'l B'Hood of Electrical Workers, Local 441

National Labor Relations Board - Board Decisions

Apr 29, 1966

158 N.L.R.B. 549 (N.L.R.B. 1966)

INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 549
International Brotherhood of Electrical Workers, Local 441,
AFL-CIO (Suburban Development Co.; O'Brien Electric Co.)
and Jones and Jones, Inc.
International Brotherhood of Electrical Workers, Local 441,
AFL-CIO (O'Brien Electric ) and American Brotherhood of
Electrical Workers
International Brotherhood of Electrical Workers, Local 441,
AFL-CIO (O'Brien Electric ) and American Brotherhood of
Electrical Workers, Local 1
Laborers & Hod Carriers Union, Local 652, AFL-CIO (O'Brien
Electric) and American Brotherhood of Electrical Workers,
Local 1
International Brotherhood of Electrical Workers, Local 441,
AFL-CIO (O'Brien Electric ) and American Brotherhood of
Electrical Workers, Local 1. Cases Nos. 21-CC-889, 21-CC-890,
21-CC-892, 21-CC-893,_21-CC-895. April 29, 1966
DECISION AND ORDER
On January 28, 1966, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that Respondent,
International Brotherhood of Electrical Workers, Local 441, AFL-
CIO, referred to herein as Respondent Local 441, had engaged in
certain unfair labor practices as alleged in the complaint, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent Laborers & Hod
Carriers Union, Local 652, AFL-CIO, referred to. herein as Respond-
ent Laborers, had not engaged in unfair labor practices and recom-
mended dismissal of the complaint as to it. Thereafter, Respondent
Local 441 and the General Counsel filed exceptions to the Trial Exam-
iner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
158 NLRB No. 57.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We do not agree with the Trial Examiner's finding that Respond-
ent Local 441, by picketing, in furtherance of its primary dispute
with O'Brien Electric Co., at locations other than entrances established
for employees of O'Brien Electric on the Suburban and Cherry proj-
ects, failed to conform with the Moore Dry Dock I requirement that
picketing take place reasonably close to the situs of the dispute. In
this connection, the facts, as more fully set forth in the Trial Exam-
iner's Decision, show that Respondent Local 441, at all times material,
was engaged in a primary labor dispute with O'Brien Electric Co.,
the electrical subcontractor on the Suburban and Cherry shopping
center construction jobs.
The Suburban project was located in Orange, California, and was
in the shape of an inverted "L" abutting 50 feet on the east side of
Prospect Street and 306 feet on the north side of Chapman Street.
The project area was unenclosed, unpaved, and had no roadways.
Before the picketing began, employees of O'Brien and neutral con-
tractors on the job, as well as deliverymen, entered and left the proj-
ect at any convenient point. On July 27, 1965, Respondent Local
441 commenced picketing the project with signs clearly identifying
O'Brien as the primary employer. One or two days later, O'Brien
established a 15-foot entrance within the 50-foot frontage on Prospect
Street for its employees. This entrance was marked by signs, affixed
to a pair of 2- to 31/2-foot stakes driven into the ground, stating
"O'Brien Electric employees entrance only." Testimony indicates
that O'Brien instructed its employees and suppliers to enter and leave
the project through that entrance only. Thereafter Local 441 con-
tinued to picket the unmarked frontages on Prospect and Chapman
Streets. On at least four occasions after the posting, O'Brien's employ-
ees and persons making deliveries to O'Brien entered or left the proj-
ect through the neutral zones.
The Cherry project was located on the southeast corner of Beach
Boulevard and Ellis Avenue in Huntington Park, California. Like
Suburban, the Cherry project was unenclosed and in an unpaved, half-
constructed state. Although there were no roadways, the project did
have five concrete vehicular entranceways, with two entranceways on
Beach Boulevard and three on Ellis Avenue. Prior to the picketing,
vehicles used any convenient entranceway, and employees entered and
left at any point. Immediately upon the appearance of Local 441's
i In Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549,
the Board set forth the following criteria to serve as a guide as to whether the picketing
of a primary employer at a common situs is violative of Section 8(b) (4) (B ) of the Act:
(1) At the time of the picketing the primary employer is engaged in its normal business
at the situs ; ( 2) the picketing discloses clearly that the dispute is with the primary em-
ployer ; ( 3) the picketing is limited to places reasonably close to the location of the situs;
and (4 ) the picketing is strictly limited to times when the situs of dispute is located on
the secondary employer 's premises.
INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 551
pickets, a separate entranceway was posted for O'Brien's employees.
The signs describing the entrance were identical in wording and con-
struction to those employed at the Suburban site and were placed at
the entranceway along Ellis Avenue at the most easterly end of the
project. As at Suburban, O'Brien's employees and suppliers were
instructed to use that entrance only. Thereafter, Local 441 continued
to picket the unmarked street frontages bounding the project on Beach
Boulevard and Ellis Avenue. On at least one occasion an individual
making a delivery to O'Brien failed to use the O'Brien entranceway,
and although the Trial Examiner did not advert thereto, the record
includes uncontradicted testimony indicating that primary employees
did enter and leave this project at locations other than the O'Brien
entrance.
The Trial Examiner, in finding that Local 441's picketing of the
projects was secondary and violative of Section 8(b) (4) (i) and (ii)
(B), relied essentially on his view that the posting of the O'Brien
entrances restricted the situs of the dispute to those locations, and,
hence, Local 441's failure to confine its picketing to those entrances
marked a departure from the Moore Dry Dock requirement that
picketing take place reasonably close to the situs.2 Contrary to the
Trial Examiner, we are of the opinion that, in the circumstances of
this case, the primary entrances were not designated in a manner
sufficient to warrant circumscribing the area of permissible common
situs picketing.
While the Board has held that picketing at locations other than a
properly marked primary gate may indicate a noncompliance with
Moore Dry Dock standards,3 the mere posting of signs does not itself
limit the situs of the dispute.4 To hold otherwise would condone,
without regard for the competing interests that must be accommo-
dated in ascertaining objective under Section 8(b) (4) (B),5 a mecha-
nistic application of Moore Dry Dock requirements.6 Accommodation
of the competing interests is maintained, however, where the Moore
2Local 441's picketing conformed with Moore Dry Dock in all other respects.
8 Orange Belt District Council of Painters No. 48, AFL-CIO ( Calhoun Drywall Com-
pany ), 154 NLRB 997; Building and Construction Trades Council of New Orleans, AFL-
010 (Markwell and Hartz , Inc.), 154 NLRB 641 ; Millwrights Local Union No. 1102,
United Brotherhood of Carpenters, etc. (Dobson Heavy Haul, Inc.), 155 NLRB 1305.
'Local Union No . 519, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry , etc. (Center Plumbing and Heating Corp.), 145
NLRB 215, 223.
5 It is the duty of the Board to balance "the dual congressional objectives of preserv-
ing the right of labor organizations to bring pressure to bear on offending employers in
primary labor disputes and of shielding unoffending employers and others from pressures
in controversies not their own." N.L.R.B. v . Denver Building and Construction Trades
Council ( Gould 4 Preisner ), 341 U.S. 675, 692.
BLocal 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO
V. NL.R .B. (General Electric Company), 366 U.S. 667; International Brotherhood of
Electrical Workers, Local Union 861 (Plauche Electric, Inc .), 135 NLRB 250, 255.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dry Dock standards are applied so as to require that ". . . the picket-
ing be so conducted as to minimize its impact on neutral employees
insofar as this can be done without substantial impairment of the
effectiveness of the picketing in reaching the primary employees." °
Applying these principles to the circumstances presented herein, we
are satisfied that the effectiveness of Local 441's picketing in reaching
primary employees and deliverymen would be unjustly impaired if
the permissible area of picketing were restricted to the O'Brien
entrance at each site. In the instant case neither project was enclosed
by a fence or other barricade. Both had substantial street frontages
which, with the exception of the O'Brien area, were unmarked and
hence provided no directions to deliverymen, primary employees, or
neutrals as to their proper means of access to and from the respective
projects. Even the signs placed at the somewhat remotely located
O'Brien entrance on each project were ambiguous, for, in addition to
the absence of any reference to deliverymen, they could be interpreted
merely as precluding entry of neutrals through the marked area while
failing to restrict primary employees and deliverymen from using the
neutral zones. The confusion occasioned by the O'Brien postings was
marked graphically by the instances at each project when primary
employees and deliverymen, themselves, failed to observe the posted
entrance.
In the circumstances, we are satisfied that neither project area was
marked in an unconfusing manner so as to provide reasonable assur-
ances to Local 441 that, by picketing confined to the O'Brien entrances,
its message would be carried to all within legitimate, direct appeal of
its picket signs.8 Accordingly, we find that the situs of the dispute
was not thereby restricted to the O'Brien entrances, and, as the picket-
ing fully conformed with Moore Dry Dock standards, it was not con-
ducted in a manner from which a proscribed secondary objective is
inferable.
Nor do we find Local 441's picketing of the Suburban and Cherry
projects to have been accompanied by other conduct negating the
presumption of legality which inures to picketing conducted in com-
pliance with the Moore Dry Dock standards. Thus, in the instant
case, there is no question that Local 441 was engaged in a primary
labor dispute with O'Brien, and, as heretofore found, its picketing
conformed fully with the Board's requirements for such lawful action
at a common situs. Nevertheless, on one occasion about a week after
the picketing began, agents of Local 441, at the Suburban project,
appealed to a neutral truckdriver to honor the picket line. This
7Retail Fruit cE Vegetable Clerks' Union , Local 648, Retail Clerks International Asso-
ciation, AFL-CIO (Crystal Palace Market ), 116 NLRB 856, 859.
8 Cf. Dobson Heavy Haul, Inc., supra.
INT"L B 'HOOD OF ELECTRICAL WORKERS, LOCAL 441 553
incident involved a single employee and represented the only departure
by Local 441 from permissible common situs activity at either project.
It occurred after the driver had made his delivery to Suburban
Development Co., the neutral general contractor , and consisted of
threatening remarks by an unidentified individual , who was later
seen in the presence of the pickets , coupled with the action of the
pickets themselves in taking the name and license number of the
driver.
Although we have held that the Moore Dry Dock presumption of
legality may be rebutted by other relevant evidence disclosing that
the true objective of the picketing was the enmeshment of neutrals,9
the question of whether or not otherwise lawful picketing is so inter-
twined with direct secondary appeals to constitute part of an overall
pattern of conduct designed to enmesh neutrals must necessarily turn
on the facts and circumstances of the particular case. Considered in
the context of the otherwise lawful action of Local 441, it is our opinion
that this single, isolated departure from permissible common situs
activity does not reflect a pattern of conduct which may be fairly con-
sidered as disclosing that the picketing was addressed to persons other
than O'Brien . Accordingly, it is our conclusion , on the particular-
facts before us, that the validity of the picketing herein is separable
from, and must be assessed independently of, the oral appeal
involved.10
In view of the foregoing , as Local 441 's conduct on the Cherry
project was unaccompanied by conduct other than legitimate Moore
Dry Dock picketing , and since there is insufficient evidence to establish
that the picketing of the Suburban project had a proscribed secondary
objective , we are not persuaded that the picketing of either jobsite
violated Section 8 ( b) (4) (i) and ( ii) (B) of the Act. Hence, we,
hereby dismiss the allegations of the complaint with regard to such
picketing.
On the other hand, because the inducement of the neutral truck-
driver on the Suburban project exceeded permissible bounds of pri-
mary activity , and was for an objective of forcing or requiring Sub-
urban to cease doing business with O'Brien, we find that Local 441
thereby violated Section 8 ( b) (4) (i) (B ) of the Act . There being no
BNortheastern Washington-Northern Idaho Building and Construction Trades Council,
et at. (Northwestern Construction of Washington, Inc.), 152 NLRB 975; International
Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO (General Telephone
Company of California), 151 NLRB 1490; International Brotherhood of Electrical Work-
ers, Local Union No. 11, AFL-CIO, et at. (L.G. Electric Contractors, Inc.), 154 NLRB 766.
10 Member Fanning concurs in the majority's finding that the picketing is lawful and
separable from the oral inducement but relies on his separate statement of position in
International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO (General-
Telephone Company of California), 151 NLRB 1490, footnote 4.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, however, that said inducement resulted in work stoppages,
or otherwise coerced or restrained any "person" engaged on that proj-
ect, we do not find said conduct to be violative of Section 8(b) (4)
(ii) (B) of the Act.
2. We find merit in the General Counsel's exceptions to the Trial
Examiner's further finding that Respondent Laborers did not violate
8 (b) (4) (i) and (ii) (B) through the actions of Business Agent Raval-
cava in orally inducing members of Laborers employed by Cal Brown,
a neutral subcontractor on the Suburban project, to engage in work
stoppages. In so finding the Trial Examiner noted that this incident
occurred prior to the establishment of the O'Brien entrance; reason-
ing that Local 4:41's picketing had not at that time evidenced a depar-
ture from Moore Dry Dock requirements, he concluded that the
Laborers' actions did not represent such a departure from approved
common situs conduct as to constitute a violation of the Act. We
disagree.
In accordance with established principle, oral inducements addressed
directly to secondary employees to strike a neutral subcontractor
engaged on a common situs constitute proscribed secondary activ-
ity11 The Moore Dry Dock tests, being evidentiary guides for deter-
mining the true object of common situs picketing, do not serve to
validate such direct secondary action. Accordingly, and as the Labor-
ers' conduct was patently for an object of forcing or requiring Cal
Brown to cease doing business with Suburban Development Company,
the general contractor, in order to force or require Suburban Develop-
ment Company to cease doing business with O'Brien Electric Co., we
find, contrary to the Trial Examiner, that Laborers violated Section
8(b) (4) (i) and (ii) (B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders :
A. That Respondent International Brotherhood of Electrical
Workers, Local 441, AFL-CIO, Los Angeles, California, its officers,
agents, and representatives, shall :
1. Cease and desist from engaging in, or inducing or encouraging
individuals employed by Rossman Lumber Co., or any other person
engaged in commerce or in an industry affecting commerce, to engage
in a strike or refusal in the course of their employment to use, man-
ufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services where
2 'Local 370, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL -CIO (Baughan Plumbing and
Heating Company, Incorporated), 157 NLRB 20. Also see cases cited at footnote 10, supra.
INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 555
an object thereof is to force or require Suburban Development Co. to
cease doing business with O'Brien Electric Co.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Post at its business offices and meeting halls in Los Angeles,
California , copies of the attached notice marked "Appendix A." 12
Copies of said notice, to be furnished by the Regional Director for
Region 21, shall, after being duly signed by Local 441's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by Local 441 to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director
for Region 21 for posting by Rossman Lumber Co., if willing, at all
locations where notices to its employees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing, within
10 days from the date of this Order what steps the Respondent Local
441 has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges unlawful conduct by Respondent International Brotherhood
of Electrical Workers, Local 441, AFL-CIO, not found herein.
B. That Respondent Laborers & Hod Carriers Union, Local 652,
AFL-CIO, Los Angeles, California, its officers, agents, and representa-
tives, shall :
1. Cease and desist from engaging in, or inducing or encouraging
individuals employed by Cal Brown, or any other person engaged in
commerce or in an industry affecting commerce, to engage in a strike
or refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles,
materials , or commodities' or to perform any services, and from
threatening, coercing, or restraining the aforesaid employer, or any
other person, where in either case an object thereof is to force or
require Cal Brown to cease doing business with Suburban Development
Company in order to force or require Suburban Development Com-
pany to cease doing business with O'Brien Electric Co.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Post at its business offices and meeting halls in Los Angeles,
California , copies of the attached notice marked "Appendix B." 13
3' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order ," the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
28 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals , Enforcing an Order "
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for
Region 21, shall, after being duly signed by Laborers' representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by Laborers to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director
for Region 21 for posting by Suburban Development Company and
Cal Brown, these companies willing, at all locations where notices to
their respective employees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing, within
10 days from the date of this Order what steps the Respondent
Laborers has taken to comply herewith.
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage individuals
employed by Rossman Lumber Co., or any employer other than
O'Brien Electric Co., to engage in a strike or refusal in the course
of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or
commodities, or to perform any services, where an object thereof
is to force or to require Suburban Development Co. to cease doing
business with O'Brien Electric Co.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 441, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5229, if they have any question con-
cerning this notice of compliance with its provisions.
INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 557
APPENDIX B
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage individuals
employed by Cal Brown, or any employer other than O'Brien
Electric Co., to engage in a strike or refusal in the course of
their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or
commodities, or to perform any services; or threaten, coerce,'or
restrain the aforesaid employer or persons other than O'Brien,
where an object in either case is to force or to require Cal Brown
to cease doing business with Suburban Development Co. in order
to force or require Suburban Development Co. to cease doing
business with O'Brien Electric Co.
LABORERS & HOD CARRIERS UNION, LOCAL 652,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5229, if they have any question con-
cerning this notice of compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF TIIE CASE
Upon charges filed on July 28, August 2 and 9, 1965 and an amended charge filed
on August 9, 1965, by Jones and Jones, Inc., and by American Brotherhood of
Electrical Workers, Local 1, Charging Parties herein,' the Regional Director for
Region 21 of the National Labor Relations Board, in behalf of the General Counsel
of the Board, issued a consolidated complaint against International Brotherhood of
Electrical Workers, Local 441, AFL-CIO, herein referred to as Local 441 or the
Union, and against Laborers & Hod Carriers Union, Local 652, AFL-CIO, herein
referred to as the Laborers, Respondents herein, alleging violations of Section 8(b)
(4)(i) and ( ii)(B) of the National Labor Relations Act, as amended (29 U.S.C.
'The status of American Brotherhood of Electrical Workers, Local 1, as a labor orga-
nization , was challenged in connection with its filing of charges herein. As it is well
established that any one may file a charge (N.L.R.B. v. Indiana & Michigan Electric Com-
pany, 318 U.S. 9, 18), I deem evidence of labor organization status irrelevant, and I
reaffirm my ruling excluding evidence relating to the organization 's status.
-558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sect. 151, et seq.), herein called the Act. In their respective answers Respondents,
while admitting certain allegations of the complaint, denied the commission of any
unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
on October 19, 1965, at Los Angeles, California, where all parties were represented
by counsel, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues, and to file briefs.
Briefs were filed by Local 441 and the General Counsel.
Upon the entire record in this case, including the briefs of the parties, and upon
my observation of each witness testifying before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER
It was stipulated among the parties that O'Brien Electric Co., the employer of the
employees involved herein and its suppliers, including Pomona Electric Wholesale
Co.. who supplied materials to O'Brien at both the Suburban and Cherry jobsites
described in detail herein, purchased goods and materials shipped to it at its Califor-
nia locations, described herein as the Suburban Development Co. jobsite and the
Guy Cherry jobsite, from locations outside the State of California, valued between
$35,000 and $40,000; and that the purchases of other contractors including Ace
Plumbing Co., Guthrie Bros. Plumbing Co., and Southern Counties Quality Masonry,
and their supplier Rossman Lumber Co., engaged on the jobsite of the Suburban
Development Co., which came to them from locations outside the State of Califor-
nia were in excess of $15,000.
Upon the foregoing stipulated facts I conclude and find that O'Brien Electric Co.,
Suburban Development Co. and Guy Cherry and the above-named subcontractors
and suppliers are employers within the meaning of Section 2(6) and (7) of the Act.
II. THE STATUS OF THE RESPONDENTS
It is stipulated and I conclude and find that International Brotherhood of Electri-
cal Workers, Local 441, AFL-CIO, and Laborers & Hod Carriers Union, Local
652, AFL-CIO, are labor organizations within the meaning of Section 2(5) of
the Act.
M. THE ISSUE
Whether Respondents' picketing of construction jobsites at which the primary
employer had established separate entrances for its employees and suppliers, and
where the said picketing was not confined to these entrances, constituted unlawful
picketing.
IV. THE UNFAIR LABOR PRACTICES
A. The facts
O'Bricn Electric Co., herein called O'Brien, was engaged, as were other subcon-
tractors, in the construction of a shopping center on the northeast corner of Prospect
Street and Chapman Avenue, Orange, California, for the general contractor, Sub-
urban Development Co., at a site designated as the Suburban project, and in the con-
struction of a shopping center at the southeast corner of Beach Boulevard and Ellis
Avemie, Huntington Park, California, for one Guy Cherry, the general contractor,
at a site designated herein as the Cherry project. On each job O'Brien's contracts
with ti.e tespective general contractor consisted of the installation of the necessary
c!ectrical wiring and equipment for the project.
On July 23, 1S65, Local 441's Business Manager W. A. Ferguson wrote O'Brien
protesting its failure to maintain a standard of employee wages, fringe benefits, and
working conditions prevailing in the area and advised it that beginning on Tuesday,
July 27. the Local would establish pickets at both the Suburban and Cherry jobsites
publicizing these facts. On July 26 Local 441 commenced picketing at Cherry and
on the following morning, July 27, it established pickets at Suburban. At each loca-
tion the sign carried by pickets stated:
O'Brien Electric not paying prevailing
wages or fringe benefits for the
electricians, Local 441, I.B.E.W.
INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 559,
The picketing thus described extended along Chapman Avenue and part of Prospect
Street at the Suburban project, and at the Cherry project it was conducted at all five
entrances on Beach Boulevard and Ellis Avenue. It continued in this manner until
August 27, 1965, when curtailed by the granting of injunctive relief resulting from
proceeding had against Local 441 in the United States District Court for the South-
ern District of California, Southern Division.
Meanwhile, upon notification by Local 441 of its intent to establish pickets at the
two projects, O'Brien immediately established at each site a reserved entrance with
appropriate signs stating, "O'Brien Electric employees entrance only." These
entrances were maintained consistently thereafter and from the outset, whenever
orders for supplies were submitted, suppliers were instructed by O'Brien that all
deliveries to O'Brien at either jobsite were to be made through the designated O'Brien
entrances.
Because the incidents which thereafter occurred at each of the projects were fac-
tually distinct they will be considered further, by location.
1. The Suburban jobsite
The Suburban site was in the form of an inverted t in an area comprising the
northeast corner of Chapman Avenue and Prospect Street. Excluded from this site
was a piece of property 150 feet square at the intersection of the two streets, on
which was located an existing service station and an improved area to the north of
this designated as Albertson's Market. The frontage on Prospect Street bounding
the northwesterly segment of the project was a 50-foot strip, lying to the north of
the segment containing Albertson's Market. The frontage on Chapman Avenue
approximated 360 feet extending beyond the service station area. When the pickets
were established on June 26 they patrolled the smaller Prospect Street frontage as
well as the entire Chapman Avenue frontage beyond the corner service station.
Within a day or two thereafter, at a point along Prospect Street 50 feet south of
the project's northern boundary, O'Brien established what was designated by signs
as "O'Brien Electric employees entrance only." This entrance was 16 feet wide, it
was marked by two such signs, and it led onto the unpaved area of the project. This
entranceway directly abutted a similar entrance to the paved area of Albertson's
Market, which was not part of but adjacent to the Suburban project.
So that the Prospect Street entrance can be properly visualized it should be noted
that, except for O'Brien's entrance, there were no discernible entrances onto the still
partially developed Suburban area, either along Prospect Street or Chapman Avenue,
and for all intents and purposes employees, visitors, and delivery and working trucks
appear to have entered onto the property at any convenient spot. At this time side-
walks had not been constructed along either street. When O'Brien established its
own entrance, however, it immediately informed its employees that they were to
enter at the Prospect "gate" and nowhere else; it instructed all its suppliers in like
manner (supra). During the course of the Suburban picketing the entrance signs,
placards on sticks driven into the ground, were frequently tom down, only to be
replaced thereafter by O'Brien foreman, Multer.2
Thereafter, in late July shortly after the separate entrance was established, Michael
O'Brien, president of O'Brien Electric, personally advised a picket, Brand, patrolling
along Chapman Avenue that they had posted a reserved entrance along Prospect
Street "so as not to involve innocent bystanders" in Local 44l's quarrel with O'Brien.
In the course of the conversation O'Brien specifically pointed out the entrance to the
picket who had previously denied any knowledge of its existence. O'Brien con-
cluded this conversation by suggesting that picketing at any spot other than this
entrance would be illegal.3 Despite O'Brien's request the Union's pickets continued
to patrol the Chapman Avenue frontage as well as portions of the Prospect Street
frontage north of the reserved entrance until they were restrained from doing so by
the United States district court injunction (section IV, A, supra).
On the morning of July 27, right after the picketing had begun, an employee
engaged in concrete work on the project expressed concern over the picketing to
Wayland Calkins, a partner of the Suburban Development C0.4 Shortly thereafter
a business agent of the Laborers Union, Ysidro Ravalcava, appeared on the sceie
2 The foregoing is a composite of the credited testimony of Calkins, O'Brien, and Fore-
man Multer.
The credited, undenied testimony of O'Brien.
a This incident is the credited testimony of Calkins
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and spoke to the concrete men who asked him if it was alright for them to continue
to work. After making a telephone call he returned to the employees and told them
to respect the picket line. When Calkins, of Suburban, then asked Ravalcava if he
were demanding that his men leave, he replied in the affirmative .5
Several days thereafter, on August 2, and after the O'Brien gate had been estab-
lished, Fred James, a driver for Rossman Lumber Co., supplying one of the subcon-
tractors on the project, arrived at the site and made his delivery by entering the area
near the service station at the street entrance. After he had driven his truck to the
construction area James noticed a picket walking in the rear of the property. He
then telephoned his employer and upon securing approval to do so James made his
delivery. At this point an unidentified man approached him and asked if Teamsters
Local 692, to which James belonged, did not recognize the picket line. When James
replied that he was unaware that the job was being picketed the individual expressed
the suggestion that "someone ought to beat your head wide open," and walked off.
As James left the jobsite in the vicinity of the service station this same individual
was in the company of two Local 441 pickets who stopped him and noted his name
and truck number on their picket signs. One of the pickets stated that he had been
on the other end of the project when James arrived and he had not seen him go in.
James apologized for crossing the picket line and left. The individual who originally
threatened James made no comment at this time.6
In addition to the foregoing incidents which occurred at the Suburban project
President O'Brien testified without contradiction that after the picketing had started,
and as a result of it, the employees of both Guthrie Bros. Plumbing Company and
Southern Counties Quality Masonry walked off the job.
Richard Walker, Local 441's business agent, conceded upon cross-examination
"by and large that O'Brien employees have been observing the reserved entrance."
However, both Walker and several other witnesses called by Respondent Local 441
testified that on a number of occasions O'Brien employees had failed to do so and
that in two instances, one involving a delivery by Pomona Wholesale Electric and
another by an unidentified stationwagon, electrical equipment was brought onto the
premises for O'Brien over a route other than the designated O'Brien entrance?
So far as employees from other employers engaged in construction operations at
Suburban are concerned, and the deliveries made to them while the picketing was
in progress, there is no question but that entry by them onto the project was made
at all points along Chapman Avenue and Prospect Street at points other than at the
designated O'Brien entrance.
2. The Cherry jobsite
As at the Suburban project, O'Brien Electric was engaged at the Huntington Beach
or Cherry project in the installation of electrical conduit and equipment necessary
to the construction of the shopping center. In this respect it appears from the testi-
mony of Foreman Multer that the same employees working at Suburban were assigned
to Cherry for alternating periods, only one job working at a time.
Here again the area was in an unpaved and half-constructed state at all times
relevant to the events being considered. The area was an open one, but unlike the
Suburban site, sidewalks had already been constructed along Ellis Street and Beach
Boulevard, the northern and the western boundaries of the project, respectively.
And unlike the other site, there were five separate paved entrances off the streets
onto the unpaved project area. Two of these were along the west boundary on
Beach Boulevard; three along the north boundary along Ellis.
Immediately upon the appearance of Local 441's pickets a separate entrance was
established by O'Brien for its employees and deliveries, and as in the case of the
Suburban entrance (supra), the employees and suppliers were instructed to use only
the reserved entrance. The signs describing the entrance were identical in wording
5It is to be noted that this incident, occurring immediately after the picketing had
begun, antidated the establishment of the separate entrance which, according to witnesses
Calkin and Multer , was not set up "for a couple of days"
9 The foregoing incident is based upon facts stipulated at the hearing
7 The testimony of Paul Todd and Harry Bauwin, pickets at the Suburban project.
Foreman Multer also testified that a Pomona delivery was made to O'Brien through an
entrance other than the one set aside for O'Brien deliveries, contrary to O'Brien's stand-
ing instructions to all suppliers. Multer, however,, described this incident as having
occurred at the Cherry site ( section IV, A, 2, infra). He saw no such occurrence at
Suburban.
INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 441 561
and construction to those employed at the Suburban site and they were placed at the
entrance along Ellis Street at the most easternly end of the project. As at Suburban
the entrance signs were torn down on several occasions and had to be replaced.
The picketing commenced on July 27 at the Cherry project and continued there-
after along the Ellis Street and Beach Boulevard boundaries of the property until
restrained from doing so by the United States court injunction (section IV, A, 1,
supra ). In this respect it is to be noted that O'Brien had advised Local 441's pickets
at the Suburban project of the establishment of the reserved gate entrance ( section
IV, A, 1, supra), and I would infer from this that Local 441 was equally aware of
the presence of a similar entrance at the Cherry site when or shortly after it was
established ; but it is conceded that no effort was made by the pickets to limit their
patrol to the designated entrance.
It is stipulated among the parties that as a result of Local 441's picketing of O'Brien
at the Cherry site, Ace Plumbing Company , the plumbing subcontractor on that job,
refused to come on the job because the pickets were present . The only evidence
appearing in the record that the reserved entrance was not respected by O'Brien's
employees or suppliers was the one instance reported by Foreman Multer where
a Pomona Wholesale Electric Company delivery truck was seen to have entered the
project at an entrance other than the designated one despite instructions to Pomona
to use only the designated entrance . Nothing in the record 'suggests that the employ-
ees of other employers who were engaged in the construction operations on the
project entered the project at any specific point. On the contrary, it appears that
these employees entered at all points along the periphery of the project and deliveries
to such employers were made by entry through entrances on both Beach Boulevard
and Ellis Street.
B. Analysis and conclusions
The situation presented here is not a stereotype "reserved gate " case wherein a
union, in furtherance of a primary dispute with a general contractor may or may
not lawfully engage in jobsite picketing at gates or entrances set aside for neutral
subcontractors , depending on whether the employers concerned are 8 or are not
engaged in the construction industry .9 Here, on the contrary , we are dealing with
the converse of the facts presented in the typical reserved gate case . For it is the
employees of the picketed primary employer for whom the separate gate or entrance
is being reserved , and, unlike the usual case, the employees of neutrals are not at
all restricted , but may enter the premises at any point . Indeed President O'Brien
made this specific point clear when he notified the pickets that he was establishing
a separate entrance for his employees "so as not to involve innocent bystanders"
(section IV, A, 1, supra ). It is to be noted at the outset, therefore , that in view of
this juxtaposition the rules of law which relate to the several types of reserved gate
situations which are established for purposes noted earlier do not apply here.
The Board 's most recent consideration of the law pertaining to common situs
picketing , of which the instant case is a variety , returns to the first principles of the
Moore Dry Dock case 10 wherein limitations were established to insure that all
reasonable precautions have been taken to prevent enmeshment of neutrals in the
primary employer 's dispute . In Millwrights Local Union No. 1102, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO (Dobson Heavy Haul, Inc.),
155 NLRB 1305, the Board applied these standards . These requirements for legal
common situs picketing set forth in Moore Dry Dock were that: ( 1) the picketing
is strictly limited to times when the situs of the dispute is located on the secondary
employer's premises ; (2) at the time of the picketing the primary employer is engaged
in its normal business at the situs ; (3) the picketing is limited to places close to the
location of the sites ; and (4 ) the picketing discloses clearly that the dispute is with
the primary employer.
In the Dobson case , as here, a separate entrance was established for employees of
the employer with whom the picketing union had its dispute . It was clearly marked,
sufficiently removed from other entrances not to be confusing , primary's employees
were instructed to use it exclusively , and the picketing union was notified of its loca-
8 Building and Construction Trades Council of New Orleans, AFL-CIO ( Mark-well and
Hartz, Inc ), 155 NLRB 319.
Local 761, International Union of Electrical Radio and Machine Workers, AFL-CIO
(General Electric Company) v. N.L.R.B., 366 U S. 667; United Steelworkers of America,
AFL-CIO (Carrier Corp.) v. N.L.R.B., 376.U.S• 492
10 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547.
221-731-67-vol. 158-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and purposes. There, as here, the picketing union continued to picket the gate
used by the employees of neutral employers with the result that these latter employ.
ees, in considerable numbers, refused to cross the picket line. The Board, reviewing
these facts and relating them to the Moore Dry Dock standards, concluded that the
picketing "was not conducted so as to minimize its impact on neutrals and substan-
tially departed from the Moore Dry Dock standards of permissible common situs
picketing."
I find nothing in a review of Local 441's picketing activity, as described herein or
from counsel's arguments submitted to me, that would distinguish this instant situa-
tion from the Board's most recent pronouncement. Thus, in applying the Moore
Dry Dock standards, while it is plain that the-picketing was limited to the times the
primary employer, O'Brien, was engaged in normal business at both the Suburban
and Cherry jobsites, and that the picketing disclosed that the dispute was with the
primary employer of O'Brien, it is not at all evident that the picketing was limited
to places reasonably close to the location of the situs; i.e., the place at each situs
where O'Brien's employees and its suppliers were directed to enter and leave.
Without question the pickets at both the Suburban and the Cherry sites patrolled
the public frontage of each project, and one picket admitted to Rossman Lumber's
driver who had crossed the picket line, James (section IV, A, 1, supra), that he had
been covering the rear of the area at Suburban. Here then, as in Dobson, it is clear
that Local 441 has not complied with the Moore Dry Dock standards in that it has
failed to meet the condition that the picketing be limited to places reasonably close
to the location of the situs itself. It is equally clear, with particular reference to the
employee of a supplier of one of the neutral, driver James, that in his encounter with
Local 441 representatives (section IV, A, 1, supra) the pickets' efforts were not
addressed to O'Brien, or its employees, or its suppliers, but were, instead, "directed
at employers and employees not parties to the dispute for the real purpose of enmesh-
ing these neutrals" in the dispute 11 Here too, as in Dobson, the record shows that
Local 441 had full knowledge of the existence of separate entrances, but nowhere
in the record does it appear that pickets saw fit to patrol at these segregated remote
spots.
Upon the foregoing facts it is clear, and I conclude and find, that Local 441's sub-
stantial departure from the Moore Dry Dock requirement of picketing reasonably
close to the location of the situs , the two designated O'Brien entrances, by directing
its picketing activity to more prominent locations at each of the projects, had the
purpose and effect of inducing employees of neutral contractors and their suppliers,
including the employees of Rossman Lumber Co., Guthrie Bros. Plumbing Company,
Southern Counties Quality Masonry, Pomona Wholesale Electric Company, Ace
Plumbing Company, and other unidentified neutral employers and suppliers of
employers engaged in subcontract work on the Suburban or Cherry projects, to
refuse to perform their work, thereby coercing and restraining those neutral con-
tractors, all for the object of forcing Suburban and Cherry, the respective general
contractors, to cease doing business with O'Brien. Under such findings and circum-
stances I would thereby conclude that Local 441 violated Section 8 (b) (4) (i) and
(ii) (B) of the Act.
The incident involving the Laborers Union, where Business Agent Ravalcava
appeared and instructed the concrete men to respect the picket line and they there-
upon walked off the job (section IV, A, 1, supra), is on different footing. This inci-
dent occurred on July 27 at the Suburban project on the day that picketing began
and "a couple of days" before the reserved O'Brien entrance had been established
at that project. At the time of Ravalcava's action all employers and suppliers,
including O'Brien's, were free to enter the project at any place along Prospect Street
or Chapman Avenue. Without instructions to the primary's employees and sup-
pliers to enter at a specific point it cannot be said that the location of the situs had
been defined with such precision as to then apply the Moore Dry Dock limitation.
As it is the Board's continuing policy in its application of the Moore Dry Dock
requirements not to do so in a mechanical or per se manner,12 I would not be dis-
posed to conclude that the Laborers' actions, through Ravalcava, constituted such
a departure from approved common situs conduct as to constitute a violation of the
Act. I would accordingly recommend that so much of the complaint as relates to
the conduct of the Laborers be dismissed.
UMillwrights Local Union No. 1102, Carpenters ( Dobson Heavy Haul, Inc.), supra.
v International Brotherhood of Electrical Workers Local Union 861 (Piauohe Electric,
Inc.), 135 NLRB 250, 255.
BLUE RIDGE MANUFACTURERS, INC. 563
V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Local 441 set forth in section IV, above, occurring
in connection with the operations as described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that -.Respondent Local 441 has engaged in certain unfair labor
practices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
Blue Ridge Manufacturers , Inc. and International Union, Dis-
trict 50, United Mine Workers of America. Cases Nos. 10-CA-
6027 and 10-CA-6099. April 29,1966
DECISION AND ORDER
On December 3, 1965, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of the complaint as to them. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute the following for paragraph 1(b) :
[" (b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
IIn the absence of exceptions, we adopt pro forme the Trial Examiner' s recommenda-
tions that certain allegations of the complaint be dismissed.
158 NLRB No. 60.